Friday, February 19, 2016

At the close of a meditation on Justice Antonin Scalia and
his replacement, Peggy Noonan says that the American left has become, in her
word, "unappeasable."

Call it a will-to-power, call it a lust for total victory,
call it whatever you want, but no matter how many battles the left has won in
the culture war, it is never enough. Like a petulant child, it must always get
its way. And it must also have the power to control your mind.

Leftists insist that you think as they think, feel as they
feel, do as they do. Your mind and your freedom belong to them. They do not
care about the will of the people as expressed by their democratically elected
representatives or even as expressed through ballot initiatives. They care
about imposing their will on everyone, depriving people of their freedom, and doing
it through the courts.

When it cannot use the courts it uses the power of the
academy and the media. Try writing a paper in a college class or an article in
the press using correct English pronouns. You will be downgraded or chastised for failing to follow politically correct usage. If you write proper English you will offend those who hold to an ideologically driven, and somewhat paranoid worldview. The thought police
are the speech police. It's not just that they want to use language idiosyncratically. They insist that you do the same.

If you disagree with the dogmas of what I call the Church of
the Liberal Pieties, you are a bigot and your opinion will be suppressed. Your views
are hate speech and you will be banned from universities across America.

The cultural warriors of the left are radical to the point
of being totalitarian. They are practicing what totalitarian states called thought reform, aka brainwashing. As I have
suggested, it has become especially virulent now because the left is trying to
shift the blame from the failed presidency of Barack Obama.

You are, dare I say, not allowed to think of Obama as a
failure. You are not allowed to believe that he is responsible for anything
that has gone wrong during his time in office. If you dare think such thoughts,
you are a racist and must be suppressed.

Calling the left unappeasable seems almost too mild.

As you know, Justice Scalia predicted this outcome when he
denounced what we can call judicial overreach. Once the courts got in the
business of legislating reality, and of circumventing or undermining the
results of elections and referenda, it opened the door to tyranny and set in
motion a process that will likely lead to rebellion.

In one opinion Scalia expressed his philosophy:

Hubris
is sometimes defined as o’erweening pride; and pride, we know, goeth before a
fall. . . . With each decision of ours that takes from the People a
question properly left to them—with each decision that is unabashedly based not
on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move
one step closer to being reminded of our impotence.

Whatever the hot-button cultural issue, Scalia declared that
the decision should be left with the people, not with a bunch of judicial
oligarchs.

For her part, Noonan offers an excellent analysis of the
cultural climate:

There
is something increasingly unappeasable in the left. This is something
conservatives and others have come to fear, that progressives now accept no
limits. We can’t just have court-ordered legalized abortion across the land, we
have to have it up to the point of birth, and taxpayers have to pay for it.
It’s not enough to win same-sex marriage, you’ve got to personally approve of
it and if you publicly resist you’ll be ruined. It’s not enough that we have
publicly funded contraceptives, the nuns have to provide them.

This
unappeasable spirit always turns to the courts to have its way.

Noonan believes that the left should take a step back and
savor its gains. It feels perfectly reasonable, and yet, we all know that the
ravenous and unappeasable left, believing that it is on the side of the angels
fighting the devils of prejudice, will never accept. It will fight to the
death and use every means at its disposal to peel off enough squishy Republicans
to make the Senate replace Scalia with a liberal.

Noonan explains that leftists are lacking in a certain quantity
of wisdom:

If
progressives were wise they would step back, accept their victories, take a
breath and turn to the idea of solidifying gains, of heroic patience, of being
peaceable.

Don’t
make them bake the cake. Don’t make them accept the progressive replacement for
Scalia. Leave the nuns alone.

Progressives
have no idea how fragile it all is. That’s why they feel free to be
unappeasable. They don’t know what they’re grinding down.

They
think America has endless give. But America is composed of humans, and they do
not have endless give.

Isn’t
that what we’re seeing this year in the political realm? That they don’t have
endless give? And we’ll be seeing more of it.

If the left were progressive or even liberal, it would heed
Noonan’s advice. But, it is neither. It is totalitarian in its impulse and it
will never be satisfied. As always happens when a culture turns to witch hunts
and inquisitions, there is no real limit. There is always anxiety that the individual is lying to you, deceiving you as to what he really thinks. It is impossible to know exactly what any individual thinks
or feels.

Facing a loss of freedom people get angry. They distrust the institutions that have been lording it over them. A restive electorate now wants to tear the house
down. At some point the unappeasable left is going to find that when you refuse
to negotiate and when you refuse to compromise, you will be subjected to the rule of force.

At some point the unappeasable left is going to find that when you refuse to negotiate and when you refuse to compromise, you will be subjected to the rule of force.

That they do not understand and are not willing to believe, which is why Obama has been the best thing ever for helping gun manufacturers sell their wares. Those buyers do understand the left. The Left wants us disarmed.

Of all the caustic nicknames given to Obama, and they are many (President Solyndra, Downlow Soetoro, The Half Blood Prince, King Barack I, Chairman Bao, President Bike-Helmet, President Mom-Jeans, O'Chavez, Obamandias, Telepromter Jesus, etc.), there is one that I like about all else. It's the most pithy:

Barack the Blameless.

This gets at the Left's unwillingness/inability to even consider the possibility that Obama is a failed President, and that the country is worse off because of him. As a sacralized black, Obama can't be personally at fault for anything. As an ideological fellow-traveler with the totalitarian progressives, Obama's policies cannot have led to any misfortune. Every problem under the sun MUST be the fault of straight while male right-wingers. It is an article of faith.

Peggy Noonan: There is something increasingly unappeasable in the left. This is something conservatives and others have come to fear, that progressives now accept no limits.

Appeasement is an interesting word. And wikipedia shows a photo of British Prime Minister Neville Chamberlain with Adolf Hitler as a demonstration. So Hitler was unappeaseable in the sense that he'd gladly accept any concessions his rivals wished to offer, but then at his convenience did exactly what he wanted to, using the appeasement as a way to buy time.https://en.wikipedia.org/wiki/Appeasement

So in this modern context, the Left is unappeaseable because they see their way as destiny, and its the same way that most modern folk, progressive or not, see "progress" as inevitable. So the Amish can keep their horse and buggies as they like, but the rest of us are moving on to bigger and better things.

So "same sex marriage" is inclusionist progress over homophobia and "family planning" (including abortion-on-demand) is rational progress over unnecessary poverty and potentially abusive resentful parents who aren't ready for another child, and "life without parole" is pro-life progress over the death penalty.

And if you believe in those progresses above, you can ask "What appeasement can a homophobic offer, that he promises he won't beat gays to death, if they would just 'don't ask, don't tell', and keep everything hidden from view?"

And what appeasement can you offer BLM leaders, that police promise to not shoot blacks who never talk back against perceived injustice, and who always keep their hands in the air, and never run away whey they're scared, and ask polite questions like "Are you detaining me, or am I free to leave?".

If BLM agreed that would be a dignified solution to the apparently instinctual fear everyone has of black men, perhaps that would be a reasoned compromise between the reptilian brains of our police officers and the people that scare them.

But we're talking about the court, and thanks to Ronald Reagan, conservatives had their ONE justice in Scalia who promoted "Originalism" which boldly said the constitution should be seen as a dead document, and when interpreting it, we should look in the context it was written, rather than as a lawyer trying to find a loophole to get what you want.

And he had a fair counter-argument against the "living document" - he said the founders offered a mechanism of amendment, if new problems arise that don't fit within the original text, of which we're now at 27, although the 21st repealed the 18th.https://en.wikipedia.org/wiki/List_of_amendments_to_the_United_States_Constitution

Interestingly the last amendment in 1992 delayed salary raises for congress until after the next election. Isn't it strange that the founding fathers never worried about bribing themselves with pay raises? Unfortunately this hasn't helped Congress's approval rating. And meanwhile a congressman can retire and make 10 times as much as a lobbyist, and the constitution also says nothing about that, and so delaying pay raises by a year seem like chump change.

So apparently the problem with constitutional amendments is they are actually rather reactionary, and ONE-SIDED, and they generally are used to control or punish someone else, and just tie the hands of judges from doing what they think is right. Maybe more in state constitution amendments.

So I suppose what I agree on Scalia is an "originalist" is a good counter-balance against judicial activism, but perhaps the solution for Obama is to find a "liberal" judge who was impressed by Scalia's attempt, and admired him, and they can do "originalism from the left" if such a thing exists.

Perhaps Scalia's "token liberal" Larry Lessig, would fit the bill?

But all of this reasoning looks like trying to "appease" the Right, and perhaps the right is also unappeaseable?

The Left is embodied in the Democratic Party USA, and represents a global Cult of Victimhood. It demands whatever it wants -- whether social or economic concessions of ordinary Americans it claims to speak for -- with no consequences. It claims the mantle of socialism while advancing an anti-social ideology -- a coalition of fringe interests. They claim to be champions of racial minorities, while said groups are represented by radicals with a monolith agenda cloaked in "diversity" and "community." In truth, their choices and actions claim they want neither. It is an insane politics, living in a willful suspension of disbelief.

As for the Supreme Court, it now has a clear path to is coveted elitist ends, where ideology -- not law -- reigns supreme. Love him or hate him, Scalia navigated within the boundaries of the Constiution. He recognized it's constraints, and that the theme and text of the document means what it says, no matter how inconvenient, no matter what his personal preferences might be. Scalia believed in the persuasion of the legislative process, not rule by the intellectual fiat imagined by 5 or more unelected, life-tenured Justices. The Federalist remarked about the judiciary, as fashioned in Article III, was the least threatening to liberty, ostensibly because the Court would rule on the law and the constitutionality of a statute, not invent the kinds of penumbra rights that create social chaos and limit the liberty of the individual citizen. Obama's remarks criticizing the Constitution's concept of "negative rights" are instructive here.

Lastly, it would be wise for the Leftist elites to recognize they are not open-minded, nor diverse, nor interested in "bringing people together." They have a fixed, defined ideology that is uniform where practiced and exercised. This is most pronounced in states along the Pacific coast and Northeast United States. It's not creative, nor new, it's Rousseau's tried and true vision for a cognitive aristocracy, with a monolithic worldview that wants more, more, more license. It does not compromise, by design. The elite is tone deaf and unaware of its intellectual snobbery that rules out compromise. When one cannot compromise, and the stakes are high in a zero-sum game, violence is a means to gain clarity. One can be as smart as he/she wants to think they are, but words and intellectual arguments are luxuries when facing pure emotion. That's what rebellion is: emotion exploding into brute force. The dam breaks, and the wall of water sweeps through indiscriminately. Civilization is a delicate thing. Those so convinced of their own magnificence and the inherent goodness of man will eventually find out otherwise.

Trump and Sanders are canaries in the coal mine. People have had it with free trade, and the tide is surging. The political class and media have no idea what to do in the face of this. The normal Americans who make America work are tired of looking up the nose of Ivy League grads who view their status as their birthright. Something has to give, and something will. We must have a morality and ethics that abandons the will-to-power nihilism that has metastasized into parochial self-fulfillment in the Empire of Nice, as communicated through the Glowing Box. A society without limits will find out limits exist... the hard way.

We will be told -- with increasingl regularity and escalating fervor -- that gun control must become our nation's top priority. Then that won't be enough, and we'll move on to confiscation schemes. And the people who cry the loudest for these measures will have men with guns in close proximity for their own safety and protection.

The "Originalism of the Left" is embodied in the work of Jean Jacques Rousseu. The madness began with implementation of Rousseau's social contract ideas (for the betterment of all, of course) in the "Declaration of the Rights of Man and Citizen." In implementing the purity of this ideology, France ended quickly got the Committee of Public Safety. It is in Rousseau that you find the Originalism of Leftism.

The United States Constitution protects the freedom of individuals from encroachment from the Federal government through clear and enumerated powers. It is the longest-lasting constitution in the world, and also the shortest in volume of words. This offers flexibility, yet this flexibility must be balanced with loyalty to the text. We don't need a "living" Constitution, and that doesn't mean it is "dead" except in your dualistic universe. It means that the text means what it says, in the way it was intended.

Thereby we can see the Founders never imagined thermal imaging as a way to search a house without entering... so should we allow this kind of search because the Constitution was silent on it (strict sonstructuonism)? Or are we informed by the wisdom and spirit of the Fourth Amendment as originally constructed? I would prefer the latter. Or we could have elitist Justives practicing technophilia, saying the Constitution is silent, that it's a "living" document, and we should provide for public safety, especially because thermal scanners glow, and that's really cool... and because they're used to capture bad guys MOST of the time. Antonin Scalia said this was bunk, and dangerous to American liberty.

Our Constitution and Bill of Rights were intended to protect the rights of individuals, not be a green light for endless Federal encroachment on our lives so as to realize the Left's desire for the perfection of man in THEIR own image. That kind of thinking gives rise to a Robespierre and a modern Reign of Terror. As I said before, civilization is precarious...

p.s. Here's a new article by insider Larry Lessig, who was the "token liberal" law clerk for Scalia years ago. So liberal or conservative, "originalism" is always about contraints of the law, and something that NEEDS a strong voice on a court, so if Scalia has been that voice, it is worthy to promote a nomination who has that same ideal.

If the Senate republicans were smart, they'd stop trying to control their president, but use their "consent and advise" power and make some suggestions of what they want besides to block everything Obama tries to do.

http://www.usatoday.com/story/opinion/2016/02/17/lawrence-lessig-scalia-set-principled-example/80448256/--------Justice Antonin Scalia was an “originalist” committed to interpreting the Constitution in the way it would have been understood at the time it was adopted. He was also a conservative who was, as any of us are regardless of our politics, committed to particular outcomes that he hoped the law would support.

Sometimes, that originalism would conflict with conservatism. As a clerk for Scalia in the early 1990s, and the only liberal clerk in the chamber, I watched him struggle with that conflict. In every case that I knew in my time as a clerk,in the end Scalia followed originalism, however reluctantly, whether the result was conservative or not.

...These acts of integrity were incredibly important to me in my becoming a lawyer. I’m not convinced he always chose originalism over conservatism. Indeed, the last time I saw him over lunch, I complained to him that he had ruined me as a constitutional lawyer, because I was constantly predicting he’d choose originalism over conservatism. Yet too often, I said, when the decision came down, I felt like Linus waiting for the Great Pumpkin. Scalia laughed his extraordinary life-loving laugh, and told me I obviously hadn’t read the cases carefully enough. And maybe, in at least some of those cases of disappointment, I hadn’t.

But whether perfectly or not, what was most striking to me was to watch someone of great power constrain his power, not for favors or public approval, but because he thought it right. As a law clerk, you quickly see that the law is a weak constraint. Originalism for Scalia was justified because of how he thought it would constrain judges. I’m sure every clerk recalls a time when whether convenient or not, originalism constrained him.

Of course, originalism doesn’t decide everything. And where it doesn’t, there’s no reason a politically appointed originalist judge shouldn’t follow his or her own politics. But we need a clearer way to call out inconsistent originalism, or as Scalia called it, an “originalism of convenience.”

...We don’t expect the same consistency from politicians as we do from judges. But when they invoke the Constitution, I think we should. Regardless of one’s theory of interpreting the Constitution, we should have an easier way to call out results of convenience. We’re all guilty of it sometimes. Some are less guilty than others.

Lawrence Lessig is the Roy L. Furman Professor of Law and Leadership, Harvard Law School. His latest book is Republic, Lost: Version 2.0.-------

Do you honestly think that Obama would listen to Senate Republicans and be constructive about a nominee who could have a chance of being confirmed?

He doesn't even involve Congressional Democrats in his legislative strategies or agenda.

And after Obama's arrogant use of executive power, his pettiness, race-baiting and dictator-empowering approach to foreign policy, there's little room for Senate Republicans to maneuver. It's an election year, and they'll need to garner the Republican base to be re-elected. The base is pissed, and moderates are fickle. And Obama is a double-crosser who isn't trusted by anyone. He's a laughing stock on the world stage and wearing thin at home.

What do the Democrat debates tell us? Answer: After 7 years of Obama, America still sucks. More, more, more government! It's never enough. They'll stop at nothing to get a Supreme Court pick through. Screw 'em!

What you want is for Republicans to roll over -- again -- and cement the liberal Supreme Court majority. Nuh-uh... no way, says I. Nay, nay.

What we do know is that being "obstructionist" is only bad when the Democrat agenda is blocked. Government shutdowns are always the Republicans fault. We can't win, so why play? There's nothing in the Constutution that says the Senate has to confirm the Preident's pick, just like Harry Reid never was mandated to pass a budget... and didn't.

These sordid tales all trace back to Robert Bork's confirmation. It was a circus. Time to pay the piper.

1. “What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?” (Remarks at Woodrow Wilson International Center for Scholars, Washington, D.C., 2005.)

2. “There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” (Majority opinion, Arizona v. Hicks, 1987.)

3. “God assumed from the beginning that the wise of the world would view Christians as fools … and he has not been disappointed. … If I have brought any message today, it is this: Have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world.” (Speech at Living the Catholic Faith conference, 2012.)

4. “If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.” (Speech, Wilson Center, 2005.)

5. “The purpose of the Federalist Society was to bring together young people who had this skepticism about what they were being taught and to let them know that there were others who shared this skepticism.” (Remarks, Federalist Society’s 20th anniversary gala, 2002.)

6. “A law can be both economic folly and constitutional.” (Concurring opinion, CTS Corp. v. Dynamics Corp of America, 1987.)

7. “If we’re picking people to draw out of their own conscience and experience a ‘new’ Constitution, we should not look principally for good lawyers. We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless.” (Speech, Wilson Center, 2005.)

8. “It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its members’ personal view of what would make a ‘more perfect Union’ (a criterion only slightly more restrictive than a ‘more perfect world’) can impose its own favored social and economic dispositions nationwide.” (Dissent, United States v. Virginia, 1996.)

9. “Bear in mind that brains and learning, like muscle and physical skill, are articles of commerce. They are bought and sold. You can hire them by the year or by the hour. The only thing in the world not for sale is character.” (Commencement address, College of William and Mary, 1996.)

"Lyndsey Fifield"

I have to admit that it thrills me that there are people who actually read "The Federalists Papers." "The Ant-Federalist Papers are as well reasoned. Anti-federalists was basically pejorative at the time which was applied to people who, mostly, thought the Constitution required a "Bill of Rights" and as things turner out they were right in the main.

Anon, you misread. "Common ground" is not the same thing as "common good".

Common ground: opinions or interests shared by each of two or more parties.https://en.wikipedia.org/wiki/Grounding_in_communication

Common good: the benefit or interests of all.https://en.wikipedia.org/wiki/Common_good

So for example we might accept "common ground" is the accepting "hypocrisy is a bad thing", so when we make decisions in wielding power that someone else dislikes, we consider how we'd act if the roles were reversed, (and realize someday roles likely will be reversed), and we might use this information to avoid the risk of being a hypocrite in the future.

That's common ground, and also self-interest, NOT the "common good", but "common sense" for rational-minded people interested in their reputations.

"Common ground" might also include respect, like listening to your president's nominees qualifications for Supreme Court before you vote no.

On the other hand, if President Obama allows his political rivals in the Senate shut down debate without a fight because open debate threatens them, that would be an act of appeasement that only rewards future aggression.